Mar 2, 2010

Institutional clash

Mir Jamilur Rahman

The Lahore High Court Bar Association has strongly criticised the government for trying to curtail the powers of the chief justices in the matter of appointment of superior judges. It has rejected the government's intentions to appoint a parliamentary commission for the selection of judges, warning that such a step would be the end of an independent judiciary. Earlier, the president of the Supreme Court Bar Association had made a similar statement.

Every country has developed its own process of appointing judges. Except for India and Pakistan, no two processes are similar. Our process of appointing judges has been borrowed from the Indian constitution. This process has been working smoothly in India, except for the setback to judicial independence that the Supreme Court and the country suffered during Indira Gandhi's emergency rule. In some cases, such as nationalisation of banks and land reforms, the government, after the adverse Supreme Court verdict, had introduced appropriate legislation to make these issues constitutionally palatable to the Supreme Court.

In Pakistan military dictators Zia-ul-Haq and Musharraf had made mincemeat of the judiciary and hacked its independence and integrity to pieces. Gen Zia invented the satanic Provisional Constitution Order (PCO) to humiliate the judiciary and humble people who were demanding an end to his sadistic rule. His sadism became obvious when his kangaroo courts started inflicting lashes on non-conformist journalists and political workers. Zia was followed after a brief democratic interlude by Gen Musharraf. He earned the dishonour of sacking and arresting nearly all the superior judges, including the chief justice of Pakistan. He also won the medal of public disgrace for an imposing emergency (martial law) twice. He took Pakistan back to the Middle Ages.

India also tasted a near-"martial law" during the 1975-77 emergency of Indira Gandhi. The independence of the judiciary was severely curtailed and human rights restricted under laws passed by parliament. A Supreme Court bench of five senior-most judges ruled in favour of the state's rights to unrestricted powers of detention during the emergency. There was no sword of Damocles hanging over their heads, but the Supreme Court felt mortally afraid of giving a verdict against the emergency.

Some experts have hinted at adoption of the American way of appointing judges wherein the president appoints the Supreme Court justices, which is a lifetime appointment. Such job security has been conferred solely on judges. It helps insure the court's independence from president and Congress. But there is a hitch. The president does not appoint but only nominates. The Senate, with a simple majority rejects or approves the nomination. This process is not restricted to federal judges but is applicable to all high appointments, including US ambassadors. Would any government in Pakistan be willing to adopt transparency in high appointments?

The UK, buried deep in traditions, has changed the process of appointing Supreme Court judges. According to the Constitutional Reforms Act, 2005, when a vacancy arises in the Supreme Court a selection commission will be formed. This will be composed of the president and deputy president of the Supreme Court and members of the appointment bodies for England, Wales, Scotland and Northern Ireland. All new judges appointed to the Supreme Court after its creation will not be members of the House of Lords; they will become Justices of the Supreme Court.

President Zardari and Prime Minister Gilani have both acted wisely when dealing with the judiciary and the lawyers. It is their sagacity that did not allow the problems getting out of hand. All the sacked judges are back and recommendations of the chief justices have been honoured in the new appointments. Above all, Zardari got rid of Musharraf. The general to the end did not know what was happening to him.

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